40 years after the Sexual Offences Act

Submitted by cathy n on 13 July, 2007 - 3:07

By Tom Unterrainer

“Frankly it's an extremely unpleasant Bill and I myself don't like it. It may well be twenty years ahead of public opinion; certainly working-class people in the north jeer at their Members at the weekend and ask them why they're looking after the buggers at Westminster instead of looking after the unemployed at home. It has gone down very badly that the Labour Party should be associated with such a Bill.”
Richard Crossman, 3rd July 1967, The Diaries of a Cabinet Minister, Volume 2

“You have given more preference to those who stand for gay rights than those who are concerned with conscience, with family and with religion.”
Bill Cash MP (Conservative), House of Commons, 21st March 2007

The 26th July 1967 must have been a momentous day for many gay men in England and Wales. On this day ‘Royal Assent’ was given to the Sexual Offences Act (SOA). As the Queen put pen to paper – or whatever ridiculous and wasteful procedure is involved – the total ban on sex between men was written out of history. For the first time since the mid-1800s it was no longer a criminal offence for two, consenting, adult men to have sex (unless you were in Scotland where gay men had to wait until 1980 for the same law to apply).

Many have credited the SOA with revolutionising the life experience of gay men and bringing about the unprecedented levels of openness and tolerance enjoyed today. In some part, this is probably true. Nobody can deny that the law itself and the amount of publicity it received helped to develop a wider consciousness and acceptance in society, changing the lives of many - but there were limitations. History and class-consciousness are not driven by the passing of laws, cannot be shaped by worthy speeches in Parliament alone. Other factors played their part.

Neither is it true that the SOA represented an end to all legal discrimination against gay men. The Act specifically allowed for sex between two men, aged 21 or above in ‘private’. ‘Private’ in this case meaning in an otherwise empty house, with the doors locked and curtains closed! Gay men still faced massive restrictions.
In assessing the significance of the SOA and the state of Lesbian, Gay, Bisexual and Transgender (LGBT) politics today, a historical survey will be useful. The 1950s witnessed a mini-eruption of prosecutions against gay men after police started to actively enforce existing anti-gay legislation. In the aftermath of World-War II and in the midst of a brewing Cold War, high-profile figures – some previously associated with the intelligence agencies – faced the courts charged with ‘indecency’ and ‘unnatural acts’.
“In the aftermath of the Burgess-Maclean spy scandal, the CIA had pressured Britain into preventing such things from happening again. Plain-clothes police hung around in public toilets, masturbating, waiting for gays to reveal themselves. If they did, they were beaten up and arrested” (Black Vinyl White Powder, Napier-Bell).

Some such as Alan Turing, the previously celebrated mathematician and war-time code breaker, had their cases covered in the press. Turing was subjected to a ‘hormonal treatment’ which resulted in disturbing physical changes (he grew breasts) and his eventual suicide – fuelling more publicity. These attacks were probably motivated by a combination of the belief that gay men with ‘sensitive’ jobs posed a security risk as their illegality left them open to blackmail and a determination to purge the country of gay activity. This retribution against high-profile figures could only make them more vulnerable, of course.

Another case that received extensive press coverage involved Edward Montagu (the 3rd Baron Montagu of Beaulieu!) and three other men. The Times and the New Statesman both covered the proceedings critically. Shortly after the conclusion of the case and after some pressure was applied, the Home Secretary announced in the Commons the formation of a committee to "to consider… the law and practice relating to homosexual offences and the treatment of persons convicted of such offences by the courts." The committee’s findings – commonly known as the Wolfenden Report – were finally published on 3rd September 1957.

The Wolfenden Report concluded that “homosexual behaviour between consenting adults in private should no longer be a criminal offence" and that "homosexuality cannot legitimately be regarded as a disease, because in many cases it is the only symptom and is compatible with full mental health in other respects." After some debate the Government decided the issue too contentious to act upon with legal reform. The Wolfenden Report, the experience of the 1950s and continuing prosecutions and harassments fuelled the formation of the ‘Homosexual Law Reform Society’ (HLRS) which from its foundation in May 1958 continued the battle for a review of legislation.

By issuing pamphlets, calling conferences, lobbying MPs and the Lords the HLRS eventually managed to get Parliament to initiate legislation to repeal anti-gay laws. In 1965 the Earl of Arran persuaded the House of Lords to act and Eighteen months later, on the initiative of Leo Abse, the House of Commons followed suit. These initiatives eventually resulted in the Sexual Offences Act of 1967. Whilst the HLRS gets much of the credit for the Act, it also gets much of the blame for watering down legislation.

The media has covered the anniversary of the Sexual Offences Act with a series of articles and documentaries with first-hand testimony from gay men on its impact. Gay couples – some of whom had been in relationships for a considerable period of time – were now relieved of the threat of prosecution, if not persecution. For these people the changes in the law were significant, others were appreciative if not fully satisfied.

The late 1960s saw an explosion of cultural and political change. A liberalisation in attitudes towards heterosexual sex, a burgeoning youth culture, challenges to parental values and expectations all developed. The American civil rights movement, women’s liberation campaigns and protests against the Vietnam War were in full swing by the end of the decade. The spirit of these groups, together with other direct influences from the United States fed into the formation of ‘gay liberation politics’. Why was this ‘new politics’ necessary when the SOA ‘done so much’ for gay men?

The quote from Richard Crossman at the start of the article perhaps illustrates why. Despite legislative reform – offered begrudgingly if Crossman’s diary and the poor attendance in the Commons at the time are anything to go by – an ingrained homophobia still existed throughout society and many anti-gay laws remained on the books – much of the legislation from the 1950s was still in force. Peter Tatchell has been vocal in exposing the limitations of the SOA. On the 30th anniversary of the SOA he wrote:
“This narrow liberalisation prompted the police to enforce the remaining prohibitions with even greater harshness. Immediately after decriminalisation in 1967 there was a big crackdown on gay men involved in age of consent violations, cruising and meeting in public places, and sexual acts in toilets and parks. Contrary to expectations, convictions for these forms of consenting homosexual behaviour soared after the so-called ‘legalisation’ of homosexuality.”

Convictions for ‘gross indecency’ increased three-fold by 1971 and had soared to around 1,500 by the mid-80s. Gay liberation politics and groups like the ‘Campaign for Homosexual Equality’ (now ‘Stonewall’) and the ‘Gay Liberation Front’ confronted the implications of this continued state discrimination. Not only that, but some started to question and analyse the root-cause of homophobia and to organise against it.

The state of legislation has been in almost continual flux since the 1970s. At the end of that decade a Home Office working party recommended the lowering of the age of consent to 18 and by 1982 both Scotland and Northern Ireland were covered by new law. Stage-by-stage it appeared to some that improvements and liberalisation would eventually consign homophobic legislation and prejudice to the dustbin. By the end of the 80s things didn’t look so rosy. AIDS and the introduction of Section 28 signalled new, direct challenges to the LGBT community. AIDS and its particular identification with gay men encouraged the right-wing press to hype up fears of a ‘Gay Plague’ and once again opened up the possibility of witch-hunts. Section 28 was proposed as an amendment to the Local Government Act of 1988 and stated that a local authority (a council with responsibility for education) "shall not intentionally promote homosexuality or publish material with the intention of promoting homosexuality" or "promote the teaching in any maintained school of the acceptability of homosexuality as a pretended family relationship”. The very wording of the law created great confusion. Did it apply to individual teachers and schools or simply the Local Education Authority? Could teachers be prosecuted for counselling distressed students or for saying anything other than ‘homosexuals exist’? The motivations that drove Thatcher’s Tory government to introduce Section 28 are multiple - from a reaction to the high-profile funding of Gay and Lesbian groups and initiatives by left-Labour councils to the reactionary response of some to AIDS. No prosecutions were ever brought under the act but it did represent a major attack on gay-rights.

February 1994 saw the tabling of an amendment to the Criminal Justice and Public Order Bill to equalise the age of consent to 16. Bizarrely, Edwina Currie - who had voted in favour of Section 28 - tabled the amendment which fell 307 to 280. This vote was followed immediately by a successful proposal to lower the age to 18. The Blair years have seen a succession of liberalising steps including the eventual lowering of the age of consent to 16 (after EU intervention), the eventual repeal of Section 28, legislation on civil-partnerships and the recent introduction of the ‘Equality Act (Sexual Orientation) Regulations’ which protects the access of gay men and lesbians to goods and services. As the law stands, things have never been better … “LGBT people are fully protected by the law, so why continue to talk about LGBT liberation?”

The answer to this question comes from a quick look at the history of legislation and the actual experience of LGBT people under these new laws. At each step along the legislative process homophobic ideas and individuals have reared their ugly heads and exposed the underlying institutional and societal prejudices that persist to this day. When the Tory MP Bill Cash contrasted the values of “conscience and family” to gay rights he did so because, like many people, he sees the two as mutually exclusive. LGBT people are still viewed as the ‘other’, abnormal, as sometimes as a threat to society. We still motivate outpourings of hate. The sick-making pleading of Cardinal Cormac Murphy O’Connor and imbecility of Arch Bishop Rowan Williams as the latest equality act passed through Parliament testify to the ingrained reactionary influences still prevalent today. However much legislation has changed the lives of LGBT people two things are true (1) no matter how much we support and fight for it (and we do), protective legislation is not permanent and (2) you cannot legislate away bigotry. However much LGBT people are free to express their sexuality and live out the ‘gay-lifestyle’ (in big cities at least), the experience of adolescence and coming out remains, by and large, a difficult one. Whatever relative freedoms LGBT people now enjoy, we are still subject to attack, organised violence and prejudice. The struggles for robust legislation and ultimately for gay liberation are not over.

During the women’s liberation movement and the development of gay liberation politics, ideas were developed that attempted to explain the structure and links between sexism and homophobia. Some of these ideas remain contentious and often challenge the very basis of our understanding of sexuality. In future issues of Solidarity we will try to assess the usefulness of these ideas and ask questions like ‘can capitalism eliminate homophobia?’, ‘can we forge a working class LGBT movement?’, and ‘are gay liberation and socialism divisible?’ Why not join the debate?

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